Parliament House Canberra
Monday 27 October 2014

The Hon Justice Peter McClellan AM
Chair, Royal Commission into Institutional Responses to Child Sexual Abuse

I would like to acknowledge and thank Dr Kezelman and ASCA for the work they do every day to help survivors of sexual and other abuse. In particular can I thank Dr Kezelman for her support of the Royal Commission. Dr Kezelman has been working with us, together with many other people, to develop our recommendations for redress – more of that in a moment.
 
Blue Knot Day is a reminder that there are many Australians who are survivors of childhood trauma and abuse. The strength, courage and resilience of those who have come forward to the Royal Commission to tell us their story shows us that recovery is possible. That possibility is enhanced by the work of Dr Kezelman and ASCA and the other people and organisations who assist survivors.
 
The Royal Commission held its first public sitting in Melbourne in April last year. On that occasion I remarked on the number of public inquiries which have considered the abuse, including sexual abuse, of children. I said that over time the community has come to acknowledge that fundamental wrongs have been committed in the past which have caused great trauma and lasting damage to many people. Although a painful process, if a community is to move forward, it must come to understand where wrongs have occurred. The Royal Commission has been tasked by its Letters Patent to develop an understanding of where we have gone wrong in the protection of children and bring forward recommendations which, so far as may be possible, will right those wrongs and make it safer for children in the future.
 
The Royal Commission has now heard from about 2,500 people in private sessions. Many others have provided us with a written account of their abuse. We have also conducted 19 public hearings.
 
The people who we talk to in private sessions cover a broad spectrum of Australian society. Each of their individual experiences has left a mark on their lives. For some that mark is evident in a profound sadness because of their betrayal by a trusted adult. Others carry greater scars. For others the life consequences have been catastrophic. Each person’s story is unique with impacts of greater or lesser significance in their life journey and with differing impacts upon their psychological and physical well-being.
 
Commissioners have also heard the stories of people who, despite traumatic childhood experiences and the indifferent or negligent response of institutions that had the responsibility to protect and care for them, have never lost their capacity to love and care for others.
 
We have seen humour and ingenuity among survivors. But we have also witnessed profound sorrow, grief and pain that for many may never go away.
 
The link between childhood sexual abuse and physical and mental health problems later in life is well-established. Some Australian and international studies have found that, amongst other debilitating effects, childhood sexual abuse can result in higher rates of depression, eating disorders and social anxiety. Child sexual abuse has been linked to psychotic disorders, including schizophrenia.
 
Commissioners have heard many stories from family members who have told the story on behalf of a loved one who has committed suicide. What is perhaps lesser known about the links between child sexual abuse and mental health is that it is not only the impact of the abuse itself that can lead to devastating outcomes for victims. The impact of the response by the institution, the survivor’s family or others in the community to this abuse may be just as critical.
 
We have taken considerable steps to ensure that as many people as possible are aware of the Royal Commission and the opportunity afforded by a private session to tell their story. The people who we hear from in private sessions come of their own choice. They self-select. We now have another 1,500 in the queue awaiting a session. The rate of inquiry for a session presently shows no signs of diminishing.
 
Public hearings are markedly different to private sessions. We have gathered information which would justify a public hearing into more than 1,000 institutions. We obviously could not hold anywhere near that number of public inquiries. For that reason we have carefully selected our public inquiries to include different types of institutions in different geographical locations. We have also considered the response of supervisory bodies and those responsible for investigating and prosecuting people who are alleged to have sexually abused children. Our purpose is to assist the Australian community to understand what has gone wrong through a representative selection of case studies. From those studied and the research and policy work we are doing, recommendations for change are being developed.
 
This is not the occasion to discuss the Commissioners’ present thoughts on many of the issues confronting the Commission. However, I can say that, from the material we have gathered to date, it is apparent that when our task is complete we will have documented a period in Australian society when institutions failed the children in their care. I do not mean to condemn every institution. It is clear that many were managed and sustained by the efforts of both volunteers and paid workers who understood how to manage an institution that provides for the welfare of children. But even then we can recognise that many well-intentioned people did not understand and did not respond to failures which should have been obvious in the institutions of which they were part. Although some institutions operated as single entities most have some integrated or overarching management arrangement or doctrinal regime. Failures may have been evident in the actions of one or a number of people but that does not relieve those in responsible positions who failed to provide appropriate policies to guide the institution and practices to inhibit the actions of the offenders.
 
From the work we have done we have gained an understanding of failures to protect children in residential facilities, schools including boarding schools, Christian churches of every character, Jewish organisations, kindergartens, after school care, sporting organisations, dance classes, music organisations, scouts, hospitals and other institutions. There is no difference in the nature of the allegations nor in the mechanism for institutional failure between institutions conducted by government and those in the private sector. When the institution provided residential care it is common to find sexual abuse accompanied by high levels of physical abuse and exploitation of the children’s labour, often for little if any reward.
 
A picture is emerging for us that although sexual abuse of children is not confined in time – it is happening today – there has been a time in Australian history when the conjunction of prevailing social attitudes to children and an unquestioning respect for authority of institutions by adults coalesced to create the high risk environment in which thousands of children were abused.
 
The societal norm that “children should be seen but not heard”, which prevailed for unknown decades, provided the opportunity for some adults to abuse the power which their relationship with the child gave them. When the required silence of the child was accompanied by an unquestioning belief by adults in the integrity of the carer for the child, be they youth worker, teacher, residential supervisor or cleric, the power imbalance was entrenched to the inevitable detriment of many children. When, amongst adults who are given the power, there are people with an impaired psycho-sexual development, a volatile mix is created.
 
Although the primary responsibility for the sexual abuse of an individual lies with the abuser and the institution of which they were part, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society. Society’s values and mechanisms which were available to regulate and control aberrant behaviour failed. This is readily understood when you consider the number of institutions, both government and non-government, where inadequate supervision and management practices have been revealed and acknowledged by contemporary leaders of those institutions. It is confirmed by the development, in recent years, of regulatory control by government over many institutions which provide for children, and the development of education programs and mechanisms by which problems can more readily be brought to attention. The most obvious is Working With Children regulation, but there are many others. No doubt we all hope that from the tragic personal stories and institutional failures revealed in our public hearings the community will be reminded that both individual institutions and governments failed in their responsibility to children. Where once silence was demanded, a child’s complaint, however tentative in its communication, must be heard and given an appropriate response. Whatever the nature of the institution and however its members are respected by the community we must all accept that there may be members of trusted institutions who fail in their duty towards children. The power of the institution must never again be allowed to silence a child or diminish the preparedness or capacity of adults to act to protect children.
 
As you all know, the Royal Commission has been tasked with considering many issues, including “ensuring justice for victims through the provision of redress by institutions.” Our research and consultation in relation to redress is now well advanced and we anticipate publishing a paper in January which will invite public responses to this complex issue.
 
Our discussions with a broad range of institutions, survivor groups and Government confirm that everyone accepts that there should be an effective response available to all survivors. That response should include three fundamental elements. First, for those who wish it, there should be an opportunity to engage with the institution where they were abused, receive a meaningful apology and be otherwise supported in a spiritually and culturally appropriate manner.
 
The second need is for any survivor to have access to counselling or psychiatric care as they may need it during their lifetime. Currently both the limited availability of trained professionals with appropriate experience and the problems faced by many individuals in paying for their treatment mean that there is an obvious gap. The answer can only be found in a secure source of funds. By some means, funding must be found which ensures that professionals are available to keep people alive and otherwise provide them with the capacity to function effectively.
 
The third need of survivors is a lump sum payment which marks the abuse and recognises the failure of the institution to keep the person safe as a child.
 
One of the difficulties faced in providing effective redress is that some of the institutions in which children were abused have ceased to exist. Others have no money. Leaving survivors of some institutions without effective redress, but making it available to others, falls short of the goal identified in our Letters Patent of ensuring justice for victims. The inevitable consequence is that the community must look both to government and the institutions with the necessary resources to come together to provide a response which provides appropriate redress for all who have suffered sexual abuse as children in an institutional context.
 
I wanted to talk to you briefly this morning about another important area of our work - the criminal justice system as it relates to the prosecution of offenders who have sexually abused children. Some of the relevant issues are the subject of present controversy amongst the judges of different states. However, what has emerged very clearly in private sessions is the disconnect between the expectations of people who are not lawyers and the requirements of the criminal justice system. It arises when decisions are being made as to how an accused person should be appropriately tried when there are multiple charges of sexual abuse. I have no present view about the issue but the community does need to reflect upon it and help us to develop recommendations.
 
It seems that depending upon the particular Australian state where a case is tried, different tests are being applied for the admissibility of tendency evidence. The concern of the judges has been that a jury may be misled into what lawyers call propensity reasoning. If they have knowledge of criminal behaviour by an accused on another occasion, they may be more ready to convict the accused, perhaps erroneously, of the conduct with which he or she has been charged. One consequence is that when there are multiple charges of sexual assault by the same accused but of different people, judges may rule that rather than risk the jury using impermissible reasoning, each charge should be considered in a separate trial.
 
It is of concern to learn, as we have in private sessions, of multiple cases where the separation of trials has resulted in the acquittal of all the charges. One man told us of seven charges against the same accused who allegedly abused seven different boys in a boarding school dormitory. Six trials resulted in an acquittal, two in a hung jury. The Commissioner who conducted the private session had no doubt that the person was telling the truth with respect to his own abuse. The survivor wonders what the jury in his trial would have thought if they had known of the seven other charges founded upon evidence of boys from the same dormitory.
 
Although these issues have previously been discussed, on many occasions, the evidence of our public hearings has provided an important practical perspective on the controversy. It reveals how institutional decision-makers generally approach these issues. It is generally at odds with the approach of the lawyers. 
 
Institutions have given evidence of the redress schemes they have developed for survivors. Some institutions have also been sued at common law for damages. In each case the institution must decide whether it accepts the survivor’s account of the alleged events.
 
We have heard, on more than one occasion, of institutions that are reluctant to accept that the abuse happened, when only one person has complained about the alleged offender. However, when others come forward, the institution in most cases readily accepts the allegations and negotiates redress payments or damages. These institutions are of course reasoning as most lay people will.  Ordinary human experience tells us that if a person acts in a particular manner on one occasion, given similar circumstances or opportunity, they are likely to act in the same manner again.
 
This assumption lies behind Chief Justice de Jersey’s discussion last year of the possibility of evidence being tendered in a criminal trial of the prior convictions of an accused. Judges in England can now admit this evidence.  Chief Justice de Jersey, when commenting on this reform, asked whether a jury should be denied knowledge that an alleged rapist committed another rape six months earlier or that an accused charged with fraud has a string of similar convictions for dishonesty?
 
This is but one of the issues we must consider in the criminal justice component of our work. There are many others and the Commissioners look forward to engaging with the legal community, survivors and others with an interest in the criminal law to enable us to develop recommendations for government. 
 
The Royal Commission which was created by the previous Government and fully supported by the present Government provides an opportunity for us all to reflect and come together and where appropriate, to ask the various parliaments to consider legislative changes.  A Royal Commission which is tasked by all of the Commonwealth, State and Territory Governments to look at these issues is rare.  The Commissioners are determined to ensure that the opportunity is not lost and that effective change will bring a safer future for the nation’s children.
 
May I again thank Dr Kezelman for the invitation to speak to you today. I look forward to continuing our dialogue as the Royal Commission undertakes its tasks.